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Gilbert Mcknight v. Michael J. Astrue

July 14, 2011

GILBERT MCKNIGHT,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 18)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Title II and XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1958 and previously worked as a plumber. (Administrative Record ("AR") 111, 22, 24, 36, 46.) Plaintiff has been arrested at least 30 times for charges including drug abuse, burglary and assault, and has been incarcerated off and on for over 20 years. (AR 195-96.) He was most recently released from custody on August 15, 2003. (AR 46.)

Prior to the current applications for benefits, Plaintiff filed another application for DIB and SSI on August 19, 2003. (AR 11, 45.) This application was denied following a hearing on October 27, 2005. (AR 11.) The ALJ in that action found Plaintiff to have severe impairments including lumbar spine degenerative disc disease, right knee degenerative joint disease, hepatitis C, depressive disorder, and an organic mental disorder; however, he found that these impairments did not meet a listing under Appendix 1, Subpart P, Regulation No. 4. The ALJ determined Plaintiff had the residual functional capacity ("RFC")*fn2 to lift/carry 50 pounds occasionally and 25 pounds frequently, to sit/stand/walk for six hours in an eight-hour workday, with no restrictions in activities of daily living, mild difficulties maintaining social functioning, and moderate difficulties in maintaining concentration, persistence or pace. Therefore, the ALJ concluded Plaintiff could perform medium work, and found Plaintiff not disabled. (AR 52-53.)

Plaintiff filed the current application for DIB and SSI on August 2, 2006. (AR 106-15.) Plaintiff believes his ability to work is currently limited by a head injury which resulted in memory loss, level 3 hepatitis C, liver problems, and arthritis in his shoulders, knees, hands, elbows, right hip and back. (AR 124.)

A. Medical Evidence

Plaintiff began seeking treatment for pain in his hands, back, and knee and was seen at Community Medical Centers and the Stanislaus County Health Services Agency on an ongoing basis. (AR 174-83, 236-60, 261-73.)

On July 20, 2006, Plaintiff was seen at Community Medical Centers. (AR 176.) Plaintiff was seeking a refill on his Oxycontin prescription due to his back and knee pain. (AR 176.) The doctor indicated that Plaintiff was using twice the amount of medication he had been prescribed and switched Plaintiff to Methadone which had a lower abuse potential. (AR 176.)

On October 11, 2006, Plaintiff was examined by Dr. Miguel Hernandez, a state agency physician. (AR 189-93.) Dr. Hernandez indicated that Plaintiff walked with a limp, had decreased range of motion in his right knee with slight swelling and mild effusion,*fn3 and experienced tenderness to palpation over the right knee. (AR 190-91.) Dr. Hernandez determined that Plaintiff had hepatitis C, right knee osteoarthritis, and chronic low back pain due to suspected degenerative disc disease; however, it was noted that this condition appeared to be stable. (AR 192.) Dr. Hernandez made general findings that "[t]he [Plaintiff] had good generalized muscle tone throughout both upper and lower extremities bilaterally." (AR 192.) Additionally, he found Plaintiff's motor strength was 5/5, and he was able to achieve about 60 pounds of pressure during a grip strength test. (AR 192.) Dr. Hernandez opined that Plaintiff had the RFC to stand/walk six hours in an eight-hour work day with 15-30 minute breaks every two hours due to chronic low back pain, and to lift and carry 20 pounds occasionally and 10 pounds frequently. (AR 192-93.) Dr. Hernandez's RFC also included unspecified postural limitations to bending, stooping, crouching, climbing, kneeling, balancing, crawling, and pulling, especially in a repetitive manner, due to low back pain and right knee osteoarthritis. (AR 192-93.)

On October 22, 2006, Plaintiff was examined by Dr. James Scaramozzino, a state agency psychiatrist. (AR 194-99.) Dr. Scaramozzino noted signs of depression and personality disorder but concluded that these symptoms were mild and did not impair Plaintiff's ability to work. (AR 198-99.)

On November 22, 2006, Dr. E. E. Wong, a state agency non-examining physician, reviewed Plaintiff's file. (AR 200-05.) Dr. Wong concluded that Plaintiff's condition had not materially changed from the time of the prior decision. (AR 202.) Therefore, Dr. Wong adopted the RFC of the ALJ in the previous action. (AR 202.) He found that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently, stand/walk six hours in an eight-hour work day, and sit six hours in an eight-hour work day. (AR 200-05.) Dr. Wong's RFC contained no postural limitations. (AR 200-05.) He explained that he disagreed with Dr. Hernandez's opinion regarding the length and frequency of breaks Plaintiff would require, as well as his postural limitation findings, because they were not supported by the facts that: (1) the Plaintiff was in no acute distress at the consultative evaluation, (2) he used no assistive devices, (3) he had normal range of motion in his hip, and (4) the sensory evaluation was normal. (AR 205.)

On November 22, 2006, state agency non-examining psychiatrist, Dr. G. F. Johnson, also reviewed Plaintiff's file. (AR 208-21.) He concluded that, because of his personality disorder, Plaintiff would have moderate difficulty functioning in a work environment. (AR 216.)

On August 21, 2007, Plaintiff had x-rays taken of his right knee. (AR 270.) Those x-rays showed "moderate tricompartmental degenerative osteoarthritis with joint space narrowing and articular spurring." (AR 207.) The doctor suspected there may be "a tiny intraarticular loose body." (AR 270.) On a follow up visit to the Stanislaus County Health Services Agency ("SCHSA") on August 27, 2007, it was noted that Plaintiff was "still having pain behind [his right] knee" but the pain was slightly improved. (AR 268.) The treatment notes also indicate that Plaintiff had normal strength in his knee. (AR 268.)

On September 26, 2007, Plaintiff was again seen at SCHSA. (AR 267.) The primary reason for the visit was a gallstone problem unrelated to this action; however, it was noted that Plaintiff was having pain in his thumb, shoulder, and knee. (AR 267.) The doctor indicated that Plaintiff might benefit from cortisone injections and referred Plaintiff to a clinic which provides that treatment. (AR 267.)

On November 1, 2007, Plaintiff was again examined at SCHSA. (AR 262.) Plaintiff complained of shoulder, knee, and hip pain. (AR 262.) The doctor noted that Plaintiff was requesting Oxycontin. (AR 262.) In examining Plaintiff's shoulder, the doctor found no deformity and indicated a strength level of 5/5. (AR 262.) Because there was no recent x-ray of Plaintiff's shoulder, the doctor ordered one. (AR 262.) The doctor noted that Plaintiff was still drinking occasionally and therefore could not be given a prescription to treat his hepatitis C. (AR 262.)

On November 14, 2007, Plaintiff had x-rays taken of his right shoulder. (AR 264.) Those x-rays showed (1) "degenerative changes in the glenohumeral joint with joint space narrowing and marginal spurring," (2) "mild degenerative changes in the acromioclavicular joint but only with minor inferior marginal spurring," (3) "no ...


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